Leivers v Eltin Pty Ltd
[1995] QSC 103
•9 June 1995
IN THE SUPREME COURT
OF QUEENSLAND
No. 1122 of 1988
Brisbane
Before: Mr Justice Ambrose
[Leivers v. Eltin Pty Ltd]
BETWEEN:
ERROL LEONARD SYLVESTER LEIVERS
Plaintiff
AND:ELTIN PTY LTD
Defendant
REASONS FOR JUDGMENT - B W AMBROSE J.
Judgment Delivered 09/06/1995
CATCHWORDS: PERSONAL INJURIES - Quantum of damages - serious physical damage and psychological effect.
Counsel:Mr J. A. M. Innes for the plaintiff
Mr M. Grant-Taylor for the defendant
Solicitors:W. T. Purcell Chadwick and Skelly for the plaintiff
Minter Ellison for the defendant
Hearing Date: 29 May to 31 May 1995
IN THE SUPREME COURT
OF QUEENSLAND
No. 1122 of 1988
Brisbane
Before: Mr Justice Ambrose
[Leivers v. Eltin Pty Ltd]
BETWEEN:
ERROL LEONARD SYLVESTER LEIVERS
Plaintiff
AND:ELTIN PTY LTD
Defendant
REASONS FOR JUDGMENT - B W AMBROSE J.
Judgment Delivered 09/06/1995
The plaintiff suffered serious injury in a mining accident on 24 August 1987. The defendant admits liability for that injury and this action has been concerned only with the quantum of damages recoverable.
The plaintiff was born on 11 May 1962. He was one of 12 children whose father was a miner. Mining had been a family tradition handed down from one generation to the next for many years. The plaintiff's ancestors were miners in England in the 19th century and clearly his father, who had other technical qualifications in electrical and mining engineering was very skilful and experienced in matters of practical mining technique.
At the time of the plaintiff's birth his father and the rest of the family were living in or near Mt Isa. In fact the plaintiff's early years were spent in a bush camp on a mining lease near Mt Isa where his father was involved in mining.
As the plaintiff grew up with other members of his family the abiding interest of at least the male members of the family appears to have been in various aspects and techniques of exploration for minerals and the mining of those minerals once found.
When the plaintiff was about 11 years of age his mother shifted from Mt Isa to Caboolture with the children so that they would not be disadvantaged in their education. By that time the plaintiff had grown up where mining was the principal, if not only, family interest which was fostered and encouraged by his father and elder brothers. From a very early age the plaintiff had been introduced into underground mining operations under the supervision and instruction of his father and elder brothers.
His scholastic achievement at High School at Caboolture was not outstanding, except in Earth Science, a subject in which he was interested. He was also interested in geography. He apparently did well in those subjects. He did very poorly however in other subjects, including English, Mathematics, Chemistry and Biology. He spent a great deal of time at Caboolture engaging in physical activity. He played for and represented his school in football and athletics and played club football. He and his brother were keen on body building and maximising their physical capacity. The whole or principal object of this interest was to develop strength and stamina to fit them for the heavy demanding work of mining - principally apparently underground mining. The plaintiff's brother, Mark, appears also from an early age to have been dedicated to becoming a successful and well respected all round miner. In fact after the plaintiff finished school at age 18 he spent a good deal of his time from then until the time of his injury on 24 August 1987 working at various mining ventures around Australia with his brother Mark - and also on occasions with other brothers similarly dedicated to the occupation of mining.
For the last few years of the plaintiff's schooling his brother Mark had worked at a number of mines doing various types of mining work. Indeed, for a time he was a mine owner‑operator.
After he left school, the plaintiff worked with his father at bore sinking in the Caboolture district. This was hard, demanding work which required some of the skills needed for mining - sinking wells, etc.
The plaintiff's father formed and/or controlled a mining concern known as Walberg Mining Company. In 1981-1982 the family company undertook development work upon a coal mine at Ipswich which required specialised knowledge and skill and the use of equipment not previously used in the area. The whole enterprise involved the family company and the plaintiff and his brothers performed both office work and the physical mining development work. This operation was very successful and the family company became known in mining circles in south-east Queensland at least for its capacity to do development work of the sort performed at Ipswich.
It is clear that the plaintiff's whole family, particularly the male members who were physically engaged in this work, took it as a matter of great pride and achievement to have successfully performed this development mining work. The achievement was written up in technical journals and indeed in the Queensland Government Mining Gazette, where the operators of the company - including the plaintiff - were photographed and received congratulations from persons well placed in the industry.
It seems likely that this event confirmed the plaintiff's predisposition to follow a mining career in a single minded fashion and to gain the skill and experience which would result in his recognition as a skilled miner and as he hoped no doubt a reputation among miners similar to that which he perceived his father to have as a result of his skill and pragmatism in the mining industry.
The plaintiff of course had not achieved a high TE score and it is clear that he had no intention of attempting to seek a general education or the sort of technical skills that academic study might produce. He chose a path which required him to gain as much experience as was available in all facets of mining exploration and mining technology by working in those areas. He regarded it as a matter of great importance to perform as many and varied functions in the mining industry as became available to him and to keep himself physically fit and trained in the use of mining tools and equipment so that with his reputation preceding him, he would be sought after to perform mining work which would put him among the top earners in the mining industry.
The plaintiff was not alone in this ambition. His other brothers (or at least Tony and Mark) obviously had the same philosophy and ambition. There seems little doubt that they were imbued with this philosophy and given this ambition by the "hands on" introduction to mineral exploration and exploitation by their father from a very early age. After the mining development work at Ipswich concluded the plaintiff worked with his brother at various other mines in Queensland and Western Australia. Together they worked at Kalgoorlie performing various sorts of mining functions. From there the plaintiff and his brother shifted to Bullock Flat in the Snowy Mountains in 1985-1986 where they engaged in tunnel construction involving the use of various types of mining equipment and techniques. That work did not involve hard rock mining, although it did involve tunnelling etc in hard rock. In 1986-1987, the plaintiff and his brother Mark together worked at a gold mine in Cooma, New South Wales, doing various sorts of underground mining work with various types of mining equipment. At that stage the plaintiff and his two brothers, Mark and Tony, were all working together although shortly after that Tony left his two brothers and pursued a mining career apart from them. For some years it appears that Tony has held down a very well paid job as a miner at the Pogera Mine work force in Papua New Guinea. He lives in Cairns and flies to Pogera for 21 day periods of work, at the termination of which he is flown back to Cairns where he has 10 days holiday.
After finishing at the gold mine at Cooma, N.S.W., the plaintiff went for a holiday and upon his return he was contacted by the defendant to do work for it as a miner at Gympie. The plaintiff accepted the position and then contacted his brother Mark, who was working at a mine in the Northern Territory and they both commenced work for that company in about July 1987.
There is a good deal of evidence as to the amount of money that the plaintiff and his brother each earned between 1980 and August 1987. While this evidence certainly indicates the nature of the earning capacity each developed, it must be kept in mind that each of them explained that he could have obtained a higher income had he been prepared simply to seek out the biggest money that happened to be on offer to miners at the time. However, each had mapped out a course for himself to become very experienced in mining at places which would establish a reputation for excellence, and to this extent each was prepared to sacrifice to some degree high money that might be made intermittently in and around Queensland and New South Wales, for example, so that he might gain experience that would be recognised not merely within Australia, but overseas as well, in the use of sophisticated and specialised mining equipment and techniques. In particular, each was very keen to spend time working on the Golden Mile at Kalgoorlie which I am satisfied is regarded by persons in the mining industry as a significant qualification by way of experience, should there be competition among miners for employment where some have had that experience and others have not.
In any event the plaintiff had been working in the defendant's mine with his brother (although not on the same shift) for a few weeks at the time of his serious injury on 24 August 1987.
I might mention that the plaintiff's brother gave evidence which I accept and which was echoed by the plaintiff himself, that one of the plaintiff's characteristics was caution when involved in mining activities. Presumably this had been drilled into the plaintiff and indeed into his brothers by their father. According to Mark the plaintiff was more careful, almost to the extent of being excessively careful, than he was. He regarded every aspect of mining activity as one that should be thought out with a view to avoiding dangers which were in fact avoidable. The industry obviously involves activities which may be dangerous and it was the plaintiff's view that a good miner was one who took care and precaution to avoid dangers which were in fact avoidable. I make this observation because, although the action was not contested on the issue of liability, the plaintiff's injury in my view was obviously caused by the grossest of negligence on the part of the person in the mine responsible for setting up the system of work and as well the person whose omission led to the plaintiff's injury.
One of the consequences of injury to the plaintiff has been a dramatic change in personality. He has developed an almost irrepressible anger directed towards the defendant and employee of the defendant whose omission led to his injury and indeed towards the Workers' Compensation department for the treatment, which he at least perceives to be unfair, which it accorded to him.
Although liability is not in issue, it is relevant to look at the uncontradicted evidence of the plaintiff as to the events which led to his terrible injury in evaluating the evidence as to the psychological injury and maladjustment inflicted upon him by the physical injuries he received.
It was the duty of the plaintiff and another man to work within the confines of a shaft nearly 1000 metres in depth. It was an old shaft that had been filled with water and it was being recommissioned to continue with underground mining for gold. At the stage at which the plaintiff was injured there was a lift which carried miners to a depth of 500 metres. Upon reaching this level persons doing the sort of work that the plaintiff was doing when he was injured stepped off onto a platform cut into the rock at the side of the shaft. The plaintiff and his work mate were two of a three man team. The third man remained at the top of the shaft working a winch cable. When the two men descending the shaft reached the platform, one stepped into a chair like contraption, described as a "bosun's chair" and the other then climbed up on to a cross bar some feet above the seat level of the bosun's chair and tied himself to the winch cable and occupied that position while travelling up to or down from the 500 metre platform level. Somehow or other lengths of metal ladder and other material that had to be installed on the timbered sides of the shaft were held by the miner sitting in the bosun's chair. Whether or not the man standing up, tied on to the winch cable gave any assistance did not emerge.
It emerges that the plaintiff, after his injury, learnt that in fact the man with whom he was working on the day of his injury had narrowly avoided serious injury when material fell down the very shaft in which they were working but somehow avoided hitting him. According to the plaintiff, he was not happy working with this man who had supervision and control over him because he seemed to be very nervy and to lose control of himself if he encountered difficulty in performing his tasks. Subsequently the plaintiff learnt of the near injury to his work mate and also that other miners had refused to work with him.
On the day in question, work having been completed at a lower level, the plaintiff and his fellow miner were being brought up to the 500 metre level by the winch cable for a distance of a couple of hundred metres. The bosun's chair did not travel very quickly and it tended to swing about a little requiring the plaintiff to be ready to push it away from obstructions. The shaft of course was pitch black, the only illumination being from the lights on the helmets on the two miners.
The method used to stop the ascent of the bosun's chair at the 500 metre level was for the man sitting in the chair to pull upon a cord or line hanging down the shaft on the side from which the platform was cut. There were signals used to go up, go down and to stop. The line or cord ended upon the 500 metre platform level where it was connected to some electrical device which would instantaneously transfer the signal generated by the pulling of the cord to the third member of the team who was on the surface in control of the winch.
At the top of the platform cutting, 20 or so feet above the floor of the platform, there extended across the shaft a very heavy, steel universal beam. The winch rope to which the bosun's chair was attached passed this heavy beam which of course was almost directly in the path of the rising bosun's chair should it be reached.
Once the bosun's chair was being raised or lowered by the team member at ground level the only signal which could be relayed to him to stop, lower or raise it was one generated by pulling on the cord or line which was joined to the electrical device, two or three feet above the level of the platform.
On the day in question, as the bosun's chair ascended to the 500 metre level, the plaintiff, as was his practice, held his hand near the line so that he could give a signal if it were necessary to do so. In fact he said that he had his hand "around" the line. It is clear however that for the bosun's chair to be brought to a halt when it reached a level which permitted the man sitting in it to step from it, it was that man who had to give a signal by pulling on the line. If the plaintiff standing on the cross bar well above the head of the person sitting in the chair had given a signal at the last moment before the line disappeared into the electrical signal box, the man sitting in the bosun's chair would not nearly have reached the platform level. Indeed it is clear his head would still have been some distance below that level. It was obviously the practice that the man sitting in the bosun's chair should keep his hand on the line and pull it almost at the last moment (keeping in mind that the bosun's chair ascended at a relatively slow rate) just before it disappeared into the electrical signal box; it would not be until that time that his feet were more or less level with the floor of the platform so that he could step on to it off the bosun's chair. The practice was that when the bosun's chair was brought to a halt the person in the position of the plaintiff would then untie the safety harness which held him tightly to the winch rope and step from the cross bar above the bosun's chair to a ladder fixed on the wooden sidings of the shaft and then step down on to a ledge and eventually walk around to the platform. He would then give the man sitting on the bosun's chair some assistance to safely step up from the chair on to the platform floor.
At the time of his injury the plaintiff let go the signal cord when his hand passed the level of the electrical signal box, to which it was attached, assuming that the man in the bosun's chair would give the necessary signal to stop the chair as his hand reached, or nearly reached, the end of the cord where it disappeared into the signal box.
For some reason which is unexplained, the man in the bosun's chair did not do that and the bosun's chair continued to rise at a relatively slow speed in such a way as to bring the plaintiff into contact with the heavy steel bar across the shaft. It did not take the plaintiff long to realise the terrible predicament in which he found himself when the bosun's chair failed to halt. Naturally enough he became very agitated and shouted out for assistance. As luck would have it at that particular time there were some people on the 500 metre platform for reasons not associated with the mining activities in which the plaintiff was involved. The plaintiff had what seemed to him to be a very long time to contemplate the approaching disaster, being quite unable to do anything to put himself into a position of safety or to avoid the injury which seemed to him to be imminent and unavoidable. He screamed loudly and I suspect somewhat hysterically for assistance from the people he noticed on the platform. They were the only ones that could give any assistance because under the system that was operational the man in control of the winch rope could not be contacted by either of the men riding on the bosun's chair apparatus once that chair had been elevated above the level of the electrical box to which the signal cord was attached.
The plaintiff was unable to undo the straps holding him to the winch rope because he had taken very great care to fasten it firmly in case he lost balance or I suppose anything else happened in the course of his elevation of a distance of several hundred metres through the 3 foot by 4 foot shaft.
In any event, the winch rope continued remorselessly to raise the bosun's chair and eventually the plaintiff's helmet and head came into contact with the bar. It is unclear from then on precisely what happened except that gradually the full power of the winch rope continued to lift the plaintiff so that eventually his spine was bent back ("hyperextended") with such force that a lumbar vertebra was crushed and the pressure generated on his internal organs was such that his stomach burst. The plaintiff said that he suffered unimaginable pain as this process continued until he lost consciousness.
It emerges however that eventually one of the men on the platform realised that there was some problem and gave the necessary signals to the man in control of the winch to bring it to a halt and then to lower it so that the plaintiff could be unstrapped from the winch rope and laid on the platform floor. The plaintiff regained some consciousness for a short time and observed that his stomach had split open and that various intestines had spilled down on the outside of his clothing and down onto his pants. He was only semi‑conscious.
I accept the evidence of the plaintiff that he was very angry with the work mate who had failed to take sufficient care to see that the bosun's chair did stop where it was supposed to stop by giving the appropriate signal in time. He said that he roundly cursed and abused that man as he lay in a cage being taken to the surface of the mine before he eventually lost consciousness.
The plaintiff, not surprisingly, was highly critical of the whole process in which he was required to be involved. He was critical of the negligence of the fellow miner sitting in the bosun's seat who failed to pull the cord in time to bring the chair to a halt before the plaintiff's head was lifted up to the bar which caused him such injury.
The plaintiff remarkably was in hospital for only a couple of weeks when he was discharged, although he had to undergo daily physiotherapy treatment for many months. He was of course quite incapable of working or doing most things requiring any degree of physical strength or capacity. One of the things he did do was go out to the mine to see some of his mining friends. It was at this time apparently that the defendant dismissed him without any explanation. This action on the part of defendant really fuelled the flames of resentment, indignation and anger already burning brightly in the plaintiff. He eventually made an application for worker's compensation but received treatment at the hands of the Workers' Compensation Department at Gympie which rightly or wrongly he perceived to be very unfair. He perceived an attitude which was critical of him rather than sympathetic. After he had been undergoing physiotherapy for some time and receiving worker's compensation, he arranged to go for a short holiday away from Gympie. He says that he told the Workers' Compensation staff that he was doing this and no comment was made. Apparently as a consequence of his going away for a relatively short time he missed a medical appointment that he was supposed to keep and steps were promptly taken to cut off his worker's compensation payments. This action further fuelled the indignation and anger of the plaintiff and he refused to go back onto worker's compensation. A consequence is that he received no lump sum payment for the significant spinal and other injuries which he received as the result of his injury in the shaft.
It is clear that during the time that he was receiving physiotherapy treatment after his discharge from hospital the plaintiff resided in a flat in Gympie with his brother Mark. It was during this time that the plaintiff developed a change of personality which, according to Mark, was quite disastrous to the fraternal relationship that had developed between them over the previous six or seven years when they had worked together at mining venues around Australia.
The plaintiff commenced to drink to excess and this made him even more impossible to relate to. He commenced to abuse members of his family and things got so bad that Mark eventually declined to live with him.
The plaintiff then lived for some time with his mother and other members of the family in Caboolture. He also fell out with her and behaved in such a way as to cause her grief. He was aware he was acting in an uncontrolled fashion but says that he was just unable to help himself. He regarded his life as having been destroyed and he was unable to become reconciled with the injury he received through the fault of others which had, as he then believed, destroyed his capacity to work as a miner.
He left home in a very bad physical and psychological condition and commenced to hitchhike to residences of other family members. He was not receiving any worker's compensation. He did not apply for any social security relief. He was sleeping in the open. He eventually hitchhiked across to Western Australia and borrowed money from a friend in Kalgoorlie to go down to Perth for an interview for an underground mining job in a mine near Kalgoorlie. At this time he was destitute and sought a position requiring him to use an air leg hammer drill. The money offered was good and full board and accommodation was provided. The plaintiff in fact persevered with this work for about 10 weeks. I am satisfied that it was only his considerable skill with the use of an air leg hammer drill that enabled him to last this time. He says that the pain was excruciating and he had to go for a walk before each shift started so that he could appear to people at the mine not to be suffering from his back disability. Under Western Australian Mining Legislation it was required that he obtain a medical certificate that he was fit for underground work. He was sent to a doctor who refused to give him that certificate. He then went back to the mine not telling the employers of this refusal and worked for a few days before telling the mine manager that his father was sick in Queensland (which was true) and that he therefore had to go back to Queensland.
He came back to Queensland and spent some time in bush camps with his father who was dying of cancer. Together they interested themselves with mining matters which appear to have produced no financial reward. The plaintiff ceased those activities upon his father's death.
I am satisfied that the period of time that the plaintiff spent in the mine is no indication that he was then reasonably capable of mining. Indeed had his physical condition been known to the employer, he would never have been permitted to go underground into the mine. It is contended that the work that he did in fact demonstrates that he is capable of doing something perhaps less strenuous for which he would not need to get a medical certificate. I am unpersuaded that his activity in the mine using an air leg hammer drill in 1990 is really of much assistance at all in determining what is pre-trial or post-trial earning capacity was and is. I would prefer to act upon his evidence and the medical evidence as to the effect his injuries have had on his capacity. Whatever his physical capacity may be, that must be considered in the context of his psychological injury when determining the nature of employment that may be available to him from persons who know of his physical and psychological injuries and the income likely to be derived from that employment.
One of the plaintiff's problems by reason of the nature of his apprehension of the injury which was to befall him is the fact that three or four nights a week he has nightmares in which he relives that experience. Unfortunately, from time to time during daylight hours, for no apparent reason he suffers from a "flashback" of the impending injury which he was unable to take any steps to avoid. He has lived with those psychological reactions since the time of his injury nearly eight years ago and it seems likely that this condition will interfere very significantly with his capacity to reconcile himself to living with his injury and pursuing some activity other than mining which might be within his physical capacity. It will also I think impair his ability to control the anger which he finds continually wells up within him at the thought of the events which have destroyed his capacity to follow a mining occupation or indeed to follow many other occupations for that matter. According to Dr Winstanley the plaintiff has suffered an injury to his spine and soft tissues around it which will prevent him from ever doing heavy work which will require him to lift, bend or stretch. I accept the plaintiff's evidence that he has a limited capacity to walk, climb or to sit for more than from 15 minutes to half an hour without moving around to change body posture to relieve the pain from which he constantly suffers in the back. His chronic back pain is such as to make it difficult in my view to obtain and perform even the "light work" which both Dr Winstanley and Dr Morris said might be within his physical capacity - ignoring altogether his chronic post traumatic stress and mal-adjustment to which Dr Mulholland refers.
The plaintiff's stomach wound has never entirely healed and from time to time it still discharges and bleeds. According to the medical evidence this condition is not a likely source of infection. However, it must be something that constantly reminds the plaintiff of the manner of the injury which he suffered nearly 8 years ago.
Prior to his injury the plaintiff had what appears to have been casual sexual relationships perhaps a couple of times a year. I have no doubt that the places where he worked and the nature of that work placed very significant constraints upon social activities which might lead to the development of any permanent relationship with members of the opposite sex. Having regard to the lifestyle which the plaintiff had adopted at least until he had acquired the experience and skill he had set his mind to acquire, he may in any event have had some difficulty in establishing a permanent relationship with a woman if that entailed her, either living in the environment of mining camps where the plaintiff was working or, alternatively, living alone in an environment more acceptable to her and seeing the plaintiff only intermittently on occasions when he was able to leave the mine site. However this may be, I accept the plaintiff's evidence that prior to the accident he had casual sexual relationships intermittently.
As a consequence of his injury the plaintiff has suffered a significant impairment of his former sexual capacity. Upon the whole of the evidence I am persuaded that the impairment is psychologically rather than organically based. I accept the evidence that the plaintiff may by counselling recover some of his pre-injury potency. However the most likely thing to improve his performance will be the establishment of a sexual relationship with a woman to whom to he can relate, who is possessed of great kindness and understanding and who may thereby alleviate his impairment and improve his sexual performance. It is unnecessary to detail the sexual problems from which the plaintiff suffers. Towards the end of 1994 he finally met a woman with whom he tried to establish what he hoped would be a lasting if not permanent relationship. In spite of the assistance that the woman gave him to have intercourse with her, he failed to have satisfactory intercourse after a number of attempts and the lady broke off the relationship. Not surprisingly this has had a debilitating effect upon the plaintiff and has compounded the psychological problem which has probably produced this impotence. Before leaving the subject I simply remark that I had the opportunity of viewing scarring that runs from the former site of the plaintiff's umbilicus towards his crutch. There is a very large, disfiguring, ugly red scar (which is keloid in nature). At the top of this scar where the umbilicus used to be before injury there is a point from which a discharge sometimes emerges. This problem is likely to continue. There is also a disfiguring scar to the plaintiff's groin which although of significant size does not have the appearance or colour of the large one running vertically down his stomach. Photographs were tendered of the scar, however they do not depict the colour of the large scar, presumably through some deficiency in the method used to take the photograph (probably with a flash light). The scars cause some discomfort if bumped or rubbed.
I have little doubt that the appearance of the plaintiff's scarring and the fact that from time to time a discharge occurs from the former site of his umbilicus are matters of which he is keenly aware. I am sure that some women, upon first observing the appearance of the plaintiff's stomach, would be both repelled and embarrassed. As well, the plaintiff's back injury impedes his capacity to have sexual intercourse.
I am satisfied that the plaintiff feels keenly the deprivation of his capacity which he had prior to injury. I find that he would like very much to develop a permanent relationship with a woman but fears that this will be very difficult, if not impossible,
He is also aware of course that his repressed anger and his change of personality from an outgoing, humorous, well adjusted young man, able to socialise without difficulty, to a man with his present defective personality will make it very difficult for him to develop a relationship with a woman which is likely to produce the kindness and understanding in her necessary to assist the plaintiff to overcome his psychologically based impotence. In this respect, I accept the evidence of Dr Hirst and Dr Mulholland. The plaintiff may derive some benefit from psychological counselling. He hopes to do so. The evidence does not persuade me that there is more than a chance that there will be some improvement. Any improvement will occur within 12 months. He will not recover from his psychological problems as the result of counselling. It may perhaps alleviate them to some unquantifiable extent.
In a case involving the infliction of injuries which very severely impair a plaintiff's enjoyment of life, it is always difficult to make with confidence an assessment of general damages to compensate for that impairment. It is just not possible to express in money terms the value to a plaintiff of the loss of his amenities of life. For this reason courts have a more or less conventional range of damages for loss of amenities of life to accommodate from the least severe to the most severe. At the present time the most severe loss of amenities of life would I think fall to be assessed within the range of from $150,000 to $200,000. Such a range has been held appropriate for awards for paraplegics with complete or almost complete loss of all muscular control who are left with an insight of their problem. The balance of very large awards of damage often made in such cases involves making the best estimate possible of future expenses that must be incurred to enable such a plaintiff to pay for services and attention reasonably required to provide amenities.
On the facts of the present case, it was contended that the plaintiff's physical injuries when considered alone would really warrant an award of general damages not in excess of about $70,000.
It is possible that when the plaintiff recovers his award of damages it may be easier for him to control his anger and reconcile himself to some extent at least with the constraints which his physical incapacity will necessarily impose upon him for the rest of his life. As he gets older it will get worse.
It may also be that with proper psychological counselling he will be more able to control his anger and behave in a more socially acceptable way and therefore be more able to develop happier and more lasting human relationships than he has been able to do since his injury.
The medical evidence and the evidence of the occupational therapist to the effect that there are certain things that the plaintiff may still be able to do within his physical and psychological limitations, to my mind, is far outweighed by what seems to me to be the unlikelihood of employers, who have knowledge of the plaintiff's limitations, being prepared to employ him having regard to the risk that his employment will lead to claims for workers' compensation, should he injure himself; this would inevitably increase the workers' compensation premiums payable by those employers. Employers would also have regard to the likelihood of the plaintiff's personality deficiencies and uncontrollable anger disrupting a harmonious working relationship with existing fellow employees. It is not impossible that the plaintiff may be able to obtain employment which he finds satisfying; he may be able to refrain from continuously harking back to the sort of self-fulfilling work that he could have done as a miner and the sort of income that he could have made, if he were able to do the sort of work and earn the sort of income that his two brothers are able to do; he may become reconciled to the performance of relatively menial, unsatisfying and poorly paid tasks. His formal education makes it unlikely that he could obtain office employment. I take the view that it is unlikely that there will be a very significant improvement for the plaintiff in the amenity of life which has been available since his injury. However some allowance must be made for the possibility that he will be able to meet and develop and a permanent relationship with a kind and understanding woman of the sort to whom I have referred. Some allowance must be made for the possibility of his being able to derive some satisfaction (which would involve earning income) should he be able to obtain employment within his physical, intellectual and psychological capacity. No suggestion was made that the plaintiff might obtain employment in some sort of sheltered workshop situation. While such employment may be within his physical and intellectual capacity I should think it would be disastrous for his psychological impairment.
I assess damages for the plaintiff's pain, suffering and loss of amenities of life in the sum of $100,000. Of that sum I assess $40,000 pre-trial and $60,000 post trial. I assess interest at 2% upon $40,000 for 7.8 years at $6,240.
With respect to the plaintiff's loss of earning capacity I find that the most helpful evidence is that from the plaintiff's brother Mark. Mark and the plaintiff had worked together in various mining ventures around Australia for years prior to the plaintiff's injury. Indeed they were working at the same mining venture when the plaintiff was injured. I find the history and quantum of the plaintiff's pre-injury earnings of only marginal assistance. I find the evidence of Mark's earnings helpful and reliable.
One thing that must be kept in mind however is that Mark was four years older than the plaintiff and he obviously had more experience than the plaintiff in the mining industry. It seems to me not necessarily to follow that, but for his injury, the plaintiff would have earned the same income between date of injury and date of trial as did his brother Mark. Having regard to the work available to him over that period he may have earned more or less than Mark. I think that he may have earned a little less because he was younger and did not have the length of experience that his brother had. On the other hand he may not have earned much less.
I have regard to the content of ex.28 which is the schedule of earnings of Mark Leivers from the relevant period up until 20 May 1995. I adjust that figure to $315,855 to bring it up to the present time. In doing this I have simply increased the quantum of the last net earnings specified from $35,410 to $40,120 to bring it up to date of trial.
I will reduce this sum only slightly to make allowance for contingencies of various sorts. The principal one is that because of the age difference the plaintiff may have earned slightly less or may have found it slightly more difficult to obtain the highly paid mining positions that his older brother obtained. I do not propose to discount the sum very much because it is on the cards that the plaintiff may well have earned slightly more than his brother. I take into account the loss of benefit of compulsory superannuation contributions since 1990 from employers in Australia. Keeping these matters under consideration I assess the plaintiff's pre-trial loss of earnings as the result of his injuries in the sum of $306,000 less what was probably his net income earned at Kayzed in Western Australia from 12 June to 18 August 1990. His gross income was $10,256 net after tax was $6,641. I assume after travelling expenses etc. his real net earnings would have been abut $6,000. I assess his pre-trial loss at $300,000. He has received $30,028 by way of workers' compensation and social security payments for periods during approximately 2,845 days since his accident. I assess interest on the sum of $270,000 at 6% per annum for 2,845 days which is $126,198.
It is agreed that special damages should be assessed in the sum of $2,095.83. On that sum interest has been agreed in the sum of $550.
With respect to the loss of future earning capacity I take the view that had it not been for the plaintiff's injury his present earning capacity would probably be the same as that of his brother Mark. Having regard to the earning schedule, ex. 18, I find that Mark over the last 152 weeks has earned a total net income of $175,655 which amounts to $1,155.60 per week.
I assess the present loss of earning capacity of the plaintiff in the sum of $1,155 per week.
The plaintiff is presently 32 years of age. In my view it is likely that had it not been for his injury the plaintiff would have maintained his present earning capacity until age 60 and thereafter would have either maintained that earning capacity or enjoyed a slightly lessened earning capacity. In coming to this conclusion I take the view that the probabilities are that the plaintiff, like his brothers, would have developed a skill and reputation that would have put him among a preferred class of miner based in Australia but working from time to time outside Australia and the likelihood is that as his physical capacities lessened with age, his experience, knowledge and skill would have led to his performing less arduous work with the same or nearly the same sort of annual salary.
What I propose to do therefore is assess the plaintiff's future loss of earning capacity assuming that he would have maintained his present earning capacity for a period of 31 years. Both counsel agreed that I should consider any net benefit lost as the result of the obligation on employers in Australia to make significant superannuation contributions for the benefit of their employees when determining what allowance to make for contingencies. This avoids the problems to which I referred in Meyer v. Beck and Suncorp Insurance (judgment unreported Townsville 101/94 delivered 8/6/95 at pp.21-24) where the approach taken by Anderson J in Jongen v. CSR & Anor (1992) Aust. Torts Rep. at 61713-4 was considered. In allowing for contingencies I will reduce the present value of the loss of 31 years income by 25%. Using the 5% tables, the present value of the loss of $1,155 per week for 31 years is $949,410. That sum reduced by 25% for contingencies is $712,057.
Upon the evidence I am quite unpersuaded that it is at all probable that the plaintiff will be able to obtain full time or even part time work as a light goods storeman or taxi driver. To the extent that he is or will become able to obtain some employment within his physical, psychological and educational capacity which seems not very probable, I assume that he might have a capacity to earn during that period of time perhaps $200 per week.
The present value of $200 per week for 31 years is $164,400. I discount that sum by 40% to $98,640 on the basis that the plaintiff's physical disabilities will almost certainly worsen as he gets older. They have worsened over the last 8 years. I find that the vicissitudes of life will have a greater impact on the plaintiff in his injured condition than they would have had if he had not been injured.
Taking both calculations into account, I assess the plaintiff's future loss of earning capacity in the sum of $613,417.
I assess the cost of future psychological counselling sessions being 20 sessions at $136 per session in the sum of $2,720. I assess agreed non Workers' Compensation Board paid medical expenses in the sum of $114. I assess the agreed pharmaceutical expenses at $10. I assess the agreed travelling expenses at $860. I assess interest on the non Workers' Compensation Board medical expenses, pharmaceuticals and travelling expenses at 12% on $984 over 7 years in the sum of $826.56. I assess the agreed Workers' Compensation Board medical expenses at $718.18. I assess the agreed workers' compensation miscellaneous expenses in the sum of $355.25. I assess the agreed workers' compensation rehabilitation expenses in the sum of $38.40. I assess the Fox v. Wood component in the sum of $4,067.11. I assess the cost of future gymnasium physiotherapy expenses in the sum of $430.00.
In summary damages are assessed as follows:
Loss of Amenities of Life $100,000.00
Interest on pre-trial loss $6,240.00
Pre-trial loss of income $300,000.00
Interest $126,198.00
Special Damages $2,095.83
Interest $550.00
Loss of future earning capacity $613,417.00
Future psychological counselling $2,720.00
Non Workers' Compensation medical expenses ( $114.00
Pharmaceutical expenses $984 ( $10.00
Travelling expenses ( $860.00
Interest on $984 at 12% $826.56
Workers' Compensation medical expenses $718.18
Workers' Compensation miscellaneous expenses $355.25
Workers' Compensation rehabilitation expenses $38.40
Fox v. Wood $4,067.11
Future physiotherapy $430.00
_________$1,158,640.00
_________
I give judgment for the plaintiff against the defendant in the sum of $1,158,640.00.
I order that the defendant pay to the plaintiff his costs of and incidental to the action (including reserve costs if any) to be taxed.
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